Overview of the tax rulings of the Swiss Federal Supreme Court published between November 27 and December 3, 2023:
- Judgment of October 31, 2023 (9C_654/2022): Direct federal tax and cantonal and communal taxes 2009-2010 (Geneva); at issue is, firstly, whether the wealth tax is confiscatory in nature with regard to the valuation of the real estate value and the securities of the company held by the taxpayer and, secondly, whether the reformatio in peius carried out with regard to the private share of the company car is permissible. The reformatio in peius is permissible, as the cantons are allowed to set up an appeal body that is independent of the tax administration. With regard to the complaint of the confiscatory nature of the wealth tax, the taxpayer was unable to prove that the assets had decreased over time. Only if the taxation, including the wealth tax, permanently exceeds the income, including the income from the assets, can it be established that the assets have been affected in such a way that the taxation could be classified as confiscatory. Dismissal of the appeal of the taxpayer A.
- Judgment of October 31, 2023 (9C_655/2022): Direct federal tax and state and municipal taxes 2008 - 2010 (Geneva); in this case, the additional private assistance was rightly not allowed as a deduction for disability-related costs. Their necessity could not be proven. Furthermore, a reformatio in peius is permissible. Dismissal of the taxpayer's appeal.
- Judgment of November 1, 2023 (9C_627/2022): State and municipal taxes canton of Schwyz, direct federal tax 2017; in this case, the taxpayer denies having received the assessment notice sent to his tax representative by A Mail Plus, which means that the later transmission of the assessment notice by email should be considered the date of service and that the objection raised against it was made in good time. In its ruling, the Federal Supreme Court states that a delivery in accordance with A Mail Plus items is not to be treated in the same way as a registered letter. A Mail Plus consignments meant that although it was highly probable that a consignment had been received, the recipient was free to provide evidence to the contrary. The lower court did not acknowledge the taxpayer's plausible objections (evidence of incorrect deliveries in 37 cases and hourly postage that showed no work activity by the tax representative), which is why his right to be heard was violated. The taxpayer's appeal was upheld.
- Judgment of November 2, 2023 (9C_102/2023) - for publication: Inheritance taxes canton of Bern (intercantonal double taxation); The deceased, who died in the canton of Vaud, left her two heirs both movable assets and a property in the canton of Bern. At issue in the present case is the tax ruling of the Canton of Berne. According to Bernese practice, a notional inheritance tax amount is calculated on the entire net estate (including the non-cantonal share), which is subsequently distributed to the cantons in proportion to the net assets adjusted by the repartition values in order to avoid intercantonal double taxation. The canton of Vaud, on the other hand, essentially carried out the inheritance tax differentiation according to the basic principles of wealth tax differentiation and only determined the cantonal assessment basis. As a result, this led to an effective double taxation of the two heirs. The Federal Supreme Court supported the position of the Canton of Vaud and stated that the intercantonal tax differentiation for inheritances is essentially the same as for wealth tax. The Bernese practice does not serve to effectively avoid intercantonal double taxation, as the chosen mechanism depends on the application of cantonal law with regard to tax calculation and this naturally differs between the cantons. Approval of the taxpayer's appeal.
- Judgment of November 13, 2023 (9C_624/2023): Direct federal tax and cantonal and communal taxes 2008-2010 (Geneva); the activities of a transparent US LLC that were subsequently declared as part of a voluntary disclosure do not qualify as commercial securities trading. Accordingly, the capital losses claimed are not deductible. Dismissal of the taxpayer's appeal insofar as it can be upheld.
- Judgment of November 13, 2023 (9C_608/2022): Real estate gains tax (Zurich); in substantive terms, the BGer examines whether the real estate gains tax is to be deferred as a result of tax-neutral restructuring. The parties are in dispute as to whether the real estate that was transferred from the sole proprietorship to an AG constitutes a business that can be transferred to a legal entity in a tax-neutral manner. The lower court denied the existence of a business because at least one person was not employed. The Federal Supreme Court points out that the management of one's own real estate only has the characteristics of a business in exceptional cases. Professional real estate management is a prerequisite for this. However, the professional real estate management required to qualify as a business does not depend on whether the management is carried out by the real estate company itself or by third parties on a contractual basis. In the present case, it is undisputed that the properties acquired by the complainant have been rented out for years, generate a high income (net over CHF 2 million/year according to the lower court; for the significance of the income, see judgment 2C_674/2018 of December 18, 2018 E. 4.3) and professional real estate management exists. The appeal is upheld and the ruling of the VGer ZH of April 26, 2022 is set aside.
Decisions on non-admission and write-offs:
Decisions are listed chronologically by publication date.
